Practice Areas

Subsidy and Injury Determinations in AD/CV Cases are Focus of WTO Challenge

Tuesday, August 11, 2015

Sandler, Travis & Rosenberg Trade Report

The Office of the U.S. Trade Representative is accepting through Sept. 9 comments on the issues raised in a World Trade Organization dispute settlement case filed by Indonesia concerning the United States’ antidumping and countervailing duty orders on coated paper from that country. Among other things, Indonesia is challenging the following.

- the Commerce Department’s findings of countervailable subsidies with respect to a number of government practices in the logging and paper industries (e.g., Indonesia argues that the DOC improperly determined that Indonesia’s log export ban and debt forgiveness practices each conferred a benefit that constitutes a countervailable subsidy and improperly applied adverse facts available without examining information Indonesia provided and without examining whether Indonesia refused access to, or otherwise did not provide,” the information)

- the International Trade Commission’s affirmative AD and CV injury determinations (e.g., Indonesia asserts that the ITC did not demonstrate the existence of a causal relationship between the imports and the purported threat of injury to the domestic industry; failed to sufficiently examine other known factors; based its threat findings on allegation, conjecture and remote possibility; and failed to demonstrate that the totality of the factors considered lead to the conclusion that material injury would have occurred unless protective action was taken)

- the requirement in 19 USC 1677(11)(B) that a tie vote in a threat of injury determination must be treated as an affirmative ITC determination, which Indonesia argues is “as such” inconsistent with WTO rules